Why can't we all just get along? America and the Virtues

Aleksandr Solzhenitsyn and his sons, in Cavendish, Vermont

Why can’t we all just get along? Since the L.A. riots in 1992, many have breathed out these words in despair and confusion. But, take courage! This question actually has an answer. And in the answer, there is a way forward.

Already in 1978, Aleksandr Solzhenitsyn put his finger on America’s problem and showed us the way forward. It was delivered by way of a commencement address at Harvard University titled, “A World Split Apart.” The audience, expecting to hear the Russian dissident criticize Soviet communism, was scandalized when he turned the tables.

With devastating accuracy, he showed how America was abusing its own freedom by wallowing in the same lies that communism forced upon the Russian people. Solzhenitsyn explained that virtue, not material prosperity, leads to freedom and human thriving. By abandoning it, America was enslaving itself.

His warning sounded strange to his audience. Many dismissed him as a quasi-religious moralist. The Ivy Leaguers counted virtue as a quaint vestige of the unenlightened past and were tossing it out of the classroom, the courtroom, and the legislative assembly.

But they were wrong. Long before Christianity came on the scene, public virtue was the single most important element of a functioning society. Plato, 400 years before Christ, first named the four personal qualities that were necessary for people to get along. These have come down to us as the Cardinal Virtues: Prudence, Temperance, Courage, and Justice.

Centuries later, Christian thinkers added Faith, Hope and Love to this list. These are called the Theological Virtues because they are specifically Christian. But the Cardinal Virtues are shared by all humanity.

The Cardinal Virtues

One of the strangest ironies of our time is that the non-religious Cardinal Virtues have been marginalized under the rubric of “freedom from religion,” while the specifically religious virtue, “Love,” has been emptied of its Christian content and perverted into a political cudgel to beat down every other virtue.

Solzhenitsyn reminded his audience that human beings are more than animals. They have not only a body, but also a spirit. That is why the virtues are absolutely necessary for human society. Without them, societies can never rise above mere animal instinct. The following survey of the Cardinal Virtues will bear this out.

Prudence (wisdom) is the mother of all virtues. It rightly directs all human action toward a good goal. To do so, it requires all people to know the difference between good and evil. It rests on our common sense of right and wrong.

Without the categories of right and wrong, good and evil, there can be no society. Yet it is precisely these categories that are denied any place in public policy. They are treated as merely personal value judgments with no basis in objective truth. “That may be good for you,” we are told, “but it is not good for me.”

Any society unable to speak with a unified voice on the subject of good and evil will never be able to get along. And, every attempt to get along, while avoiding a sober and reasonable discussion of good and evil, will only underscore how unwise and uncivilized that society has become.

Temperance (moderation) is the virtue of controlling the appetite. It recognizes that human beings have built-in needs that must be met, and that meeting these needs gives pleasure. It also recognizes that overindulgence and disordered use of these appetites will always cause great human suffering.

Four of the seven deadly sins are connected to temperance. Gluttony, greed, lust and sloth are overindulgence in food, money, sex and rest respectively. But sin, like virtue itself, is dismissed as a “religious” category. Most forget that it was as familiar in pre-Christian Greece as in the Bible.

But, the pretense that only religious fanatics condemn intemperance is a convenient strategy to divide and conquer. By it many defenders of temperance are shamed out of the public square. This leaves room for a decadent culture not only to tolerate, but to celebrate and encourage such sins.

Courage (fortitude) is the virtue that is most in short supply today. It is the virtue that overcomes personal fear in order to do what is right. It is especially necessary today because Americans have become so entangled in their appetites for public approval and economic success that the Twitter mob and the Cancel Culture can easily silence those who lack this virtue.

Think about how many politicians, teachers, church leaders and businesses have been frightened into silence, or even into public apology for speaking their mind. Solzhenitsyn put America’s lack of courage up front in his critique. She has not gotten any braver in the four decades since.

Justice (righteousness) is the final virtue in Plato’s list. It is the constant and permanent determination to give everyone his or her rightful due. Prudence—the intellectual ability to discern good and evil—can tell you what is right and just. Justice is the willpower to do the right thing without regard to persons.

When Lady Justice is depicted in art, she is always blindfolded because she operates without respect of persons. When money, status, or public opinion skews the application of justice, it is evil. Social justice that judges class membership but ignores individual acts of good and evil is inherently unjust.

It has been a very long time since our political system paid attention to this virtue. America has been deluded into thinking that justice requires strict moral neutrality. This lie has driven our common sense of good and evil out of the public square. This foolishness has brought us to the brink of disaster.

While the Cardinal Virtues do not establish any particular religion, their exclusion is motivated by a materialistic worldview that hates the very idea of religion. This worldview is itself a religion that denies the very spirit of humanity and has led to the slaughter of millions and the enslavement of billions around the globe.

While Solzhenitsyn knew the evils of communism, he saw clearly that it sprang from virtue-less materialism. He observed that “through intense suffering our country has achieved a spiritual development of such intensity that the Western system in its present state of spiritual exhaustion does not look attractive.”

As a direct result of that development, countries of the former Soviet Union are rebuilding their societies by an unabashed return to the virtues. Poland, Serbia and Hungary, among others, are leading by example. If America is unwilling to take their advice, Solzhenitsyn predicted that it “would be broken by the pitiless crowbar of events.”

Mobs that burn, loot and deface statues may well portend the events that Solzhenitsyn warned about 42 years ago. No society can deny human nature forever. It will either be prudent enough to listen to those who have gained wisdom through suffering, or it must undergo its own bitter lessons.

How America responds to this present hour will determine the outcome for our children and grandchildren. They will either endure great suffering or enjoy true freedom. They will also have the clarity of hindsight to judge this present generation. By Prudence, Temperance, Courage and Justice our generation can renew America’s freedom. Without these, history will be a harsh judge.

WTE: The Humpty Dumpty Court

Bostock v. Clayton County, the Supreme Court’s latest adventure in legislating, has already seen enough compelling analysis to raise some troubling questions. Here’s a quick overview.

Justice Kavanaugh’s dissent showed that the majority did not interpret Title VII of the 1964 Civil Rights Act. Rather the Court rewrote Title VII, inserting language that multiple previous congresses decidedly rejected. This is a “transgression of the Constitution’s separation of powers,” he wrote.

The dissenting opinion of Justices Alito and Thomas was stronger still. “There is only one word for what the Court has done today: legislation.” It emphasizes that our elected representatives are currently considering H.R. 5, the so-called “Equality Act,” which would amend the very law that Bostock rewrote. But rather than let the elected legislators vote, six unelected justices disenfranchised 360 million votes cast in three separate elections.

The majority not only arrogated this task to itself, but did it in the laziest way possible. It rewrote a single line of the U.S. Code that would affect 167 different provisions of federal law—but refused to reconcile the contradictions it created.

Among the 167 questions left unanswered are whether men’s access to women’s dressing rooms and sports leagues will be mandated. Whether female students and women escaping from domestic violence will be forced to share dorm rooms and living quarters with men, it didn’t say.

Patients will sue doctors both for removing healthy sex organs and for refusing to remove healthy sex organs. The majority could not be bothered to tell doctors which side will win. These, “are questions for future cases,” it said.

The evasive majority thus refused to commit itself to the logic of its own opinion—for good reason. The opinion’s fatal flaw is an equivocation in the opening paragraph. Gorsuch wrote, “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

This framing of the question assumes that a man’s right to present as a woman is hindered by the unalterable fact of his sex—he can’t help it if he’s a man. Therefore, the Court must come to the rescue and forbid an employer from taking his sex into account.

Gorsuch’s foundational claim that sex is unalterable is heretical to gender theorists. When J.K. Rowling recently said that, “sex is determined by biology,” the outrage mob wanted her canceled. How Justices Kagan, Breyer, Ginsburg and Sotomayor could have signed onto this opinion without incurring the wrath of the same mob should be puzzling.

But, of course, no one is surprised. In our brave, new world, logical inconsistencies are par for the course. In fact, Gorsuch is not the first to opine that “sex discrimination” includes any legal recognition of the unalterable fact of sex. The theory has been around since 1975, when he was in third grade. Moreover, his fellow Justice, Ruth Bader Ginsburg, has spent 45 years arguing against it!

Gorsuch asserts that this self-contradictory opinion is driven by strict and principled “textualism.” But he never once uses the word, “originalism.” It would be better described as “pre-textualism,” because he has no intention of determining the original meaning of the text.

First, neither “homosexual,” nor “transsexual" is, in fact, in the text. Second, multiple legislators over the course of 45 years have proposed changes in the text precisely because the text does not address homosexuality and transsexuality. Third, his concurring justices, Kagan, Breyer, Ginsburg and Sotomayor, have a long and proud history of defying textualism at every turn.

I am not pointing out anything that the majority didn’t already know. They are extremely smart and capable lawyers. Doubtless, Alito, Thomas and Kavanaugh have been reminding them of the logical, constitutional and legal problems for the past several months.

They knew full well that their opinion would require decades of litigation costing millions. They knew that countless doctors, churches, businesses and charities would be sued into oblivion.

They also could have explicitly limited Gorsuch’s theory to Title VII alone. But the majority both refused to rule out any of the 167 new applications, while also refusing to admit that they would all logically follow.

This is now a Humpty Dumpty court. "When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean—neither more nor less." "The question is," said Alice, "whether you can make words mean so many different things." "The question is," said Humpty Dumpty, "which is to be master—that's all."

The Bostock majority is now that master. That is all.

Also published in the Wyoming Tribune Eagle, June 26, 2020.

Bostock defies the constitution, logic and legal precedent

Bostock v. Clayton County, the Supreme Court’s latest adventure in legislating, has already seen enough compelling analysis to raise some troubling questions. Here’s a quick overview.

Justice Kavanaugh, one of three dissenting justices, amply showed that the majority opinion did not interpret Title VII of the 1964 Civil Rights Act. Rather it rewrote it. In so doing, the Court arrogated to itself the authority to insert language into law that multiple previous congresses have decidedly rejected.

Those old enough to have been taught civics in school, easily recognize this as a blatant “transgression of the Constitution’s separation of powers.” The Court’s bid, beginning with Marbury v. Madison, to be the final interpreter of the Constitution has reached the end of the line. It has rendered the Constitution incapable of limiting the Court.

The dissenting opinion of Justices Alito and Thomas was even more adamant. “There is only one word for what the Court has done today: legislation.” It emphasizes that our elected congressional representatives are currently considering legislation to address the very issue involved in Bostock. But rather than waiting for the legislative outcome of H.R. 5, the so-called “Equality Act,” the Court short-circuited this process.

In so doing, it effectively vacated more than 360 million ballots cast over the past six years. American voters elected 535 representatives to do the sensitive and gargantuan task of updating hundreds of lines of federal code.

The majority not only arrogated this task to themselves, but they did a lazy and ham-handed job of it. They rewrote a single line of the U.S. Code, sending shock waves through 167 different paragraphs of the same federal laws—but gave absolutely no attention to reconciling the contradictions they created.

Among the 167 questions left unanswered are whether men’s access to women’s dressing rooms and sports leagues will be mandated. We will have to wait to know if colleges, battered-women’s shelters and communal housing will force females to sleep in rooms with men. Patients will sue doctors both for removing healthy sex organs and for refusing to remove healthy sex organs. Only a future ruling will determine which one is discrimination on the basis of sex.

Any competent legislator would have been diligent to treat the law as an integrated whole and update it uniformly. The Bostock majority proved its incompetence by blandly asserting that all these, “are questions for future cases.”

The Court acted like the worst of internet trolls. You know the type. You write a lengthy and detailed explanation of your position, then the troll comes along and twists a single word of your post, causing it to contradict every other sentence you wrote. By this sleight of hand, the troller pretends that you contradict yourself.

Here is a simple rule for attentive listening: When your interpretation of a single word is inconsistent with 167 separate statements from the same speaker, you should consider the possibility that your interpretation, not the speaker, is wrong. The prudent thing to do is to allow the plain meaning of 167 paragraphs to correct your misinterpretation of one statement.

But prudence is in short supply these days. Had Justice Gorsuch applied this rule, he might have looked more carefully at his own syllogism and seen that the opening paragraph of the Bostock opinion contains an equivocation that invalidates the entire opinion.

He wrote, “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions [namely acting contrary to his/her own nature] it would not have questioned in members of a different sex [nature]. Sex [nature] plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

As evident from the last sentence, Gorsuch understands “sex” to be a person’s unalterable nature. Transgenderism, and Gender Theory more generally, assert that “sex” is not a person’s nature, but an alterable trait. Indeed, the entire opinion argues that persons who declare themselves to be a sex different from what chromosomes, hormones and bodily organs indicate, have in fact changed natures.

Gorsuch’s foundational claim that sex is unalterable is precisely the position that recently caused the outrage mob to lash out at J.K. Rowling. True believers in Gender Theory want her cancelled for saying, “sex is determined by biology.”

How Justices Kagan, Breyer, Ginsburg and Sotomayor could have signed onto this opinion without incurring the wrath of the same mob should be puzzling. But, of course, no one is surprised by this contradiction. Contradictions are par for the course.

There is, however, a supremely greater puzzle that needs solving. How is it that six members of the highest court in the land, could not see this laundry list of inconsistent claims, illogical arguments, and unconstitutional usurpations of power? Millions of Americans with average intelligence saw them immediately.

What is more, the American public has had less than a week to digest the Bostock opinion. The Court’s majority has been arguing with Alito, Thomas and Kavanaugh since last October.

Gorsuch vehemently asserts that his opinion is driven by strict and principled “textualism” and that he had no choice in the matter. It is notable that he does not describe his position as “originalism.” By substituting textualism for originalism, he betrays that he has no intention of determining the original meaning of the text. It would be more aptly named, “pre-textualism.”

Still, his argument falls flat for three reasons.

First, neither “homosexual,” nor “transsexual" is, in fact, in the text. What is in the text has never been universally understood in the way that he claims. Only a small minority of gender theorists began to advance this argument in 2017—53 years after the text was written.

Second, Congress has acted on multiple occasions to reconsider the text precisely because it recognized that the text as written does not address homosexuality and transsexuality.

Justice Samuel Alito

Third, of the six justices that signed on to Gorsuch’s opinion, the progressive block of Kagan, Breyer, Ginsburg and Sotomayor have a long and proud history of defying textualism at every turn. Is the American public supposed to believe that all four suddenly saw the truth of the late Justice Scalia’s wisdom?

So, what would possess the majority to write and join such an outlandish opinion? They knew, full well, that the constitutional arguments for judicial restraint were overwhelming. They knew full well that the language theory behind their opinion was the thinnest pablum of recent contrivance. They knew full well that they were overturning 56 years of settled law and offering nothing in its place.

They knew full well that their opinion would require decades of litigation costing millions upon millions of dollars, and would require suing countless doctors, churches, businesses and charities into oblivion. They knew full well that their opinion would adversely affect the most fundamental of freedoms to think, speak and act in accordance with reality.

So, what possible goal could be so important that it is worth running roughshod over all these weighty considerations? The American people deserve a better answer than the majority opinion supplies. Bostock increasingly appears to be a pretext for the raw exercise of judicial power.

WTE: Lessons learned from the Capitol Hill Autonomous Zone in Seattle

CHOP, formerly known as CHAZ, the Capitol Hill Autonomous Zone, surrounds the vacant and boarded up East Precinct headquarters of the Seattle Police Department. It is six square blocks of banana republic planted in the middle of an American city.

On June 8, 2020 after several continuous days of turmoil, a mob began to throw bricks, bottles and homemade bombs at the men and women who were there to protect and serve. Many were hospitalized. Still more were injured. The mob’s threats to torch the precinct headquarters prompted police to abandon the area.

Thriving communities are the product of building, not tearing down. For families to live together in peace and harmony, hundreds of institutions and millions of moving parts need to be painstakingly and lovingly cultivated. It is possible for a community to survive the sudden collapse of an important institution. But that is an injury it must work to heal. It cannot be the constituting principle of the community.

By emptying the East Precinct, CHOP did not rid themselves of the police, they simply established a new, untrained and ununiformed police department. In so doing, they erected barricades that disrupted commerce with the outside world.

Of course, the armed men manning the barricades will be quick to assure us that all the vehicles of community and commerce are free to enter the zone. But will the utilities themselves and trucks supplying commerce be willing to risk equipment and personnel in an area controlled by an untested and unlawful police force?

The buildings and businesses that support a community are only made possible by trusting relationships forged over decades. No father or mother wants to raise children in a community where neighbors corrupt their children. No shop owner wants to do business where his shop may be picked clean at the whim of a mob.  No police officer will be willing to risk life and limb to protect and serve neighbors and shop owners if he is targeted by revolutionaries and abandoned by city government.

That is why education, not law enforcement, remains the backbone of every community. Education is not simply the imparting of a body of knowledge. Properly speaking, it is the raising of good citizens. Technological know-how and the ability to spout the latest politically correct mantra are worthless in themselves.

Unless children are raised up to be virtuous, community is not possible. When these foundations are eroded, a community may survive for a while, but there will come a tipping point. Communities that fail to inculcate prudence, justice, fortitude, temperance, faith, hope and love will inevitably collapse into chaos.

The occupiers of Seattle are staring into this abyss today. They seem, instinctively, to know the value of education. The two most visible activities of the occupiers are digging up the park for “guerilla gardens,” and setting up “teach-in tables.” These teaching stations offer crash courses in transformative justice and other progressive values.

Whether hasty indoctrination into social justice theory can replace the virtue that built Seattle is doubtful. But at least someone is recognizing the truth that community starts by inculcating the virtues.

That raises questions about our own communities. Are we still teaching the virtues that built Wyoming? Or, is progressive indoctrination stripping our children of the education needed to thrive? Institutions, buildings and businesses built by past generations may survive by pure inertia. But if we do not constantly renew freedom’s foundations, they will not survive for long.

Good intentions cannot redeem bad ideas. Central planning cannot make up for the suppression of common sense. The sudden appearance of a banana republic in Seattle ought to put every American citizen on alert. President Ronald Reagan famously said, “Freedom is never more than one generation away from extinction. We didn't pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same.”

Wyoming’s people know this instinctively and work hard to raise their own children with the virtues that support freedom. What they must learn from events in Seattle is that the transmission of freedom to the next generation is a cooperative endeavor. It cannot be done alone in a bunker.

It involves not only the home, but the school; not only the school, but the library; not only the library, but Main Street. Lawyers, doctors, ranchers, rough necks, miners, mothers, teachers and preachers all have a unique and vital contribution to make in the education of a free society.

Hard work and self-sufficiency are the necessary foundation of freedom. But unless free citizens work together to build communities, they will be overwhelmed by the mob when a “Capitol Hill Autonomous Zone” comes to Cheyenne. Now is the time to come together. Now is the time to build.


Also published in the Wyoming Tribune Eagle, June 19, 2020.

Building ahead of the Capitol Hill Autonomous Zone

Still from the 2012 movie adaptation of Les Misérables.

America’s founding fathers considered, and then rejected, the ideology that drove the French Revolution. The reign of terror that filled the streets of Paris with blood never happened in America.

For this reason, the barricades that wall off the Capitol Hill Autonomous Zone (CHAZ) in Seattle, Washington, are an ominous sign. Even while images of America’s founding fathers are being defaced, beheaded and destroyed, the competing images of barricades and rioters with rifles are being erected before our eyes.

For years, the radical left has been denouncing border walls and immigration enforcement. How ironic that their first governmental act in the fiefdom of the Autonomous Zone was to build a wall, and their second act was to put armed border agents in place to check IDs and limit access from outsiders.

Next, the same people that called for mail-in voting went to occupy city hall and disenfranchise millions of voters. Mayor Jenny Durkan was duly elected by free citizens of Seattle, but an oligarchy of armed insurrectionists demanded that she resign or meet their list of demands.

The instinctive impulse among leftists is to tax corporations and redistribute the money to political dependents. So, no one was surprised at reports of intimidation squads going from business to business gathering taxes to replace the food supplies that were quickly depleted by giveaways.

Seattle’s police chief admitted that they had received no formal complaints of such intimidation squads. I have no reason to dispute that. If you were being intimidated, would you risk a formal complaint to the very police force that fled the area and left your business unprotected?

Here's the way that the leftist Seattle Times described the scene. “A mix of block party, street protest and unsanctioned graffiti gallery, the area around the East Precinct has remained largely peaceful since police left, though a few people had been spotted carrying long rifles.”

How bucolic that the only firearms in sight are “long rifles.” Assault weapons would be so much scarier. “Unsanctioned graffiti gallery” is a euphemism to describe defaced public buildings and infrastructure throughout the six-block territory of the Zone. “Largely peaceful,” is a nice turn of phrase. As long as nobody publicly opposes the occupiers, it will remain that way.

The Autonomous Zone is centered around the Seattle Police Department’s East Precinct. That empty building is its defining characteristic. On June 8, 2020 after several continuous days of protest, the crowd began to throw bricks, bottles and fireworks at the men and women who were there to protect and serve. Many were hospitalized. When the mob threatened to burn down the precinct headquarters, the city decided to withdraw all law enforcement officers from the area.

Thriving communities are the product of building, not tearing down. For families to live together in peace and harmony, hundreds of institutions and millions of moving parts need to be painstakingly and lovingly put into place. It is possible for a community to survive the sudden collapse of an important institution. But that is an injury it must work to heal. It cannot be the constituting principle of the community.

By emptying the East Precinct, the CHAZ did not rid themselves of the police, they simply established a new, untrained and un-uniformed police department. In so doing, they also cut themselves off from the entire network of the city of Seattle. Water, electricity, sewer, street repair, bus routes—all are affected. Barricades now stand between them and the garbage trucks that keep streets clean. Commerce is squelched as shops and grocery stores are denied deliveries.

Of course the men manning the barricades will be quick to assure us that all these vehicles of community and commerce will be allowed to enter the zone. That satisfies one side of the transaction. But have they checked with the utility companies and the delivery trucks to see if they are willing to risk equipment and personnel in an area controlled by an untested and unlawful police force?

The buildings and businesses that support a community are only made possible by relationships forged over decades. No father or mother wants to raise children in a community where neighbors corrupt their children. No shop owner wants to do business in a community where his shop may be picked clean at the whim of a mob.  No police officer will be willing to risk life and limb to protect and serve neighbors and shop owners if he is targeted by revolutionaries and abandoned by city government.

For these reasons education, not law enforcement, remains the backbone of every community. Education is not simply the imparting of a body of knowledge. Properly speaking, it is the raising of good citizens. Technological know-how and the ability to spout the latest politically correct mantra are worthless in themselves.

Unless children are raised up to be virtuous, community is not possible. When termites eat away at the foundations of education and virtue, a community will survive for a while. Virtuous habits and edifices of brick and stone may persist for some years after true virtues are no longer taught. But there will, inevitably, be a tipping point at which the whole community collapses in chaos.

The occupiers of Seattle are staring into this abyss today. They seem, instinctively, to know the value of education. The two most visible activities of the occupiers are the building of “guerilla gardens,” and as one reporter described, “teach-in tables that seem to grow exponentially—on harm reduction, transformative justice, community safety.”

Whether hasty indoctrination into social justice theory can replace the virtue that built Seattle is doubtful. But at least someone is recognizing the truth that community starts by inculcating the virtues.

That brings us to Wyoming. Assaults on the education of our population have not only happened in liberal cities. Much damage has been done across the fruited plains and in our own state as well. Institutions, buildings and businesses built by past generations may survive by pure inertia. But if Wyoming is not constantly working to renew freedom’s foundations, they will not survive for long.

Wyoming is known for its rugged individualism. Steeped in this ethos, it is easy to overlook the fact that individuals act most effectively when they act cooperatively. Hard work and self-sufficiency are the necessary foundation of freedom. But unless free citizens are working together to build communities, they will be overwhelmed by the mob when the Capitol Hill Autonomous Zone comes to Casper.

Given that reality, now is the time to build. Now is the time for fathers and mothers, hard-working neighbors and friends to get involved in repairing the foundations of a civilization that has been under assault.

Seattle is no joke. It is a warning shot that should put every American citizen on alert. President Ronald Reagan famously said, “Freedom is never more than one generation away from extinction. We didn't pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same.”

Wyoming’s people know this instinctively and work hard to raise their own children with the virtues that support freedom. What they must learn from events in Seattle is that the transmission of freedom to the next generation is a cooperative endeavor. It cannot be done alone and in isolation.

It involves not only the home, but the school; not only the school, but the library; not only the library, but Main Street. Lawyers, doctors, ranchers, rough necks, miners, mothers, teachers and preachers all have a unique and vital contribution to make in the education of a free society. It's a time for building.

WTE: Every member of the human race should be equal in Wyoming law

Clarissa was born on the bathroom floor, weighing only three and a quarter pounds. She arrived six weeks premature, induced by overdoses of methamphetamine, cocaine and, possibly, heroine. At the hospital she was treated for neonatal abstinence syndrome (NAS).

The tiny newborn was withdrawing from the illegal drugs shared with her mother throughout her gestation. Through the love of her foster family, she pulled through. Now this bright and strong Wyoming woman loves to tell her story because she wants to speak for others less fortunate.

Statistically, a child is born with NAS every fifteen minutes. The tragedy of America’s addiction epidemic is that it affects not only men and women, but tens of thousands of unborn persons every year. The unjust injury and death inflicted upon people with no say in the matter cries out for justice. We, as Wyomingites, have a duty to intervene for their protection.

Exercising that duty, the State of Wyoming recently filed charges against a Torrington mother. She and her newborn both tested positive for methamphetamine last August. The Goshen County prosecutor charged her with felony child abuse and delivery of methamphetamine to a minor. But, on March 26, 2020, her charges were dismissed.

Public Defender David MacDonald argued that Wyoming’s statutory language does not specifically designate an unborn Wyomingite as a “child.” Therefore she does not fit the legal definition of a minor. Nor does it specifically call a pregnant woman a “mother.” If not a mother, she cannot be a “parent” in the eyes of the law. Therefore, she cannot be charged with parental abuse for action taken before the birth.

The Torrington Telegram triumphantly headlined the story, “Charges dropped; attorney proves a fetus isn't a person, according to state statute.” Actually, MacDonald is more modest about his achievement. Charges were dismissed when the state’s prosecutor failed to answer his brief. By default, the Eighth District Court found that the statutory language fails to stipulate that an unborn child is a person, or that a pregnant woman is a mother.

This ought to alarm every parent in the state. By denying that a fetus has any legally recognized parents prior to birth, the court not only exonerated one mother of parental responsibilities, it also wiped away the corresponding parental rights for all expectant couples.

Anybody from an abortionist to a social worker can interfere with the parent child relationship before the child is born. Neither parent has legal standing to advocate for the child.

Simultaneously, the Eighth District Court denied any legal protection whatsoever for the child. If an unborn child has no right to be protected from illegal and harmful drugs, she also has no right to be protected from murder. Should anyone slip an abortion pill into a mother’s drink, Wyoming cannot bring murder charges.

Senator Lynn Hutchings introduced the Unborn Victims of Violence Act (2019-SF 128) to repair this injustice in Wyoming law. It would have provided statutory language that allows Wyoming to prosecute the murder of an unborn child.

The Senate Judiciary Committee replaced every reference to “unborn child” with “fetus,” and every reference to “mother,” with “pregnant woman.” The bill ultimately failed. It remains legal in Wyoming to kill an unborn child against the will of the mother.

The Torrington case has exposed the lie that children can be adequately protected without legal recognition of the parent-child relationship in the womb. This void in state law fails to protect rights guaranteed in Wyoming’s Constitution. “In their [the people’s] inherent right to life, liberty and the pursuit of happiness, all members of the human race are equal” (Wyo. Const. Sec. 1, par. 2).

Equal protection for life in Wyoming is not predicated on “personhood.” Regardless of whether a member of the human race may be dehumanized with terms like “embryo” and “fetus,” or humanized with words like “child” and “person,” the Constitution recognizes equality for “all members of the human race.”

Deeply anti-human “personhood theories” are a recent invention that discriminate between “human beings” and “persons.” These uncertain and unproven theories have been used to justify slavery, the holocaust, starvation of the disabled and many other atrocities.

Wyoming’s Constitution, written after the Dred Scott decision plunged us into civil war, deliberately avoids racist “personhood theory.” It promises equal protection under law to “all members of the human race.” The court should have recognized this. The state’s prosecutor should have filed a brief to defend Wyoming’s Constitution.

Since neither the executive branch nor the judicial branch defended these constitutionally protected rights, Wyoming legislators must. Clarissa’s life reminds us that inadequate laws bring tangible harm to real people with lives worth protecting. Every member of the human race has the right to life, liberty and the pursuit of happiness.

Also published in the Wyoming Tribune Eagle, June 12, 2020.

Every member of the human race should be equal in Wyoming law

Photo: Nowshad Aarefin, unsplash.com

Clarissa was born on the bathroom floor, weighing only three and a quarter pounds. She was delivered six weeks before her mother’s due date. Three siblings before her had already been removed from her custody due to her mother’s ongoing drug addiction. In fact, it was an overdose on methamphetamine, cocaine and, possibly, heroine that caused the premature labor.

As Clarissa lay unbreathing on the floor, she was discovered by her maternal grandmother. Acting quickly, she revived the tiny baby and called an ambulance. Once in the hospital, Clarissa suffered from neonatal abstinence syndrome (NAS). In essence, this is withdrawal from the illegal drugs that were given her through the umbilical cord.

After the initial struggle with NAS, she was diagnosed with “failure to thrive.” Unable to process enough nutrition to sustain a normal growth curve, she lost even more ground in her struggle to survive. By the grace of God, she overcame all these challenges. The love of her foster family and the skill of the medical team combined to bring her to full health.

Clarissa’s rough entry into the world is now a story she likes to tell. She has a passion to share her story because she knows that she speaks for others. Statistically, there is a child born with NAS every fifteen minutes. The tragedy of America’s addiction epidemic is that it affects not only men and women, but tens of thousands of unborn persons every year.

Not all are as fortunate as Clarissa. Some are still born. Others die unattended. Survivors sometimes have life-long birth defects. The injury and death inflicted upon some unborn children, but not others, is an inequity that cries out for justice. When a mother injures her own child with illicit drugs, the state has a duty to intervene for the protection of the child.

In recognition of this duty, the State of Wyoming recently filed charges against a Torrington mother. The facts of the case are undisputed. On August 18, 2019, a mother under the influence of methamphetamine gave birth to a child who also tested positive for the drug.

“She was charged with felony child abuse and delivery of methamphetamine to a minor,” according to the Torrington Telegram. On December 9, she was arraigned in the Eighth District Court. Then, on March 26, 2020 her charges were dismissed.

Public Defender, David MacDonald, successfully argued that Wyoming’s statutory language does not specifically say that an unborn child is a “child” in the eyes of the law. Therefore, the charge of delivering meth to a minor child must be dismissed. He further argued that it does not specifically call a pregnant woman a mother. If not a mother, she cannot be a “parent” in the eyes of the law. Therefore, she cannot be charged with felony child abuse for action taken before the birth.

The Torrington Telegram triumphantly headlined the story, “Charges dropped; attorney proves a fetus isn't a person, according to state statute.” Actually, MacDonald is more modest about his achievement. His success at court fell short of proving that Wyoming law considers a fetus to be a non-person. Rather, he proved that the statutory language fails to stipulate that an unborn child is a person, or that a pregnant woman is a mother.

Goshen county courthouse

This ought to alarm every pregnant woman and every expectant couple in the state. The Eighth District Court has now established case law denying that a fetus has any parents prior to birth. In a bid to exonerate a woman of her parental responsibilities, the court wiped away all corresponding parental rights.

Anybody from a doctor to a state agency can treat a child in the womb without consent from either the mother who is carrying her or the man who fathered her. Neither parent has any legal rights to make decisions for the care of the child prior to birth.

As for the unborn child, the Eighth District Court has just wiped away any legal protection that the child formerly had under Wyoming law. If it is legal to deliver harmful substances to an unborn child, it is also legal for anybody to kill the child and the state has no statutory authority to punish the crime against the child. Enhanced penalties for killing a pregnant woman (enacted in 2010) do nothing to address this injustice.

Senator Lynn Hutchings

If this problem in Wyoming law seems vaguely familiar, you may be remembering that Senator Lynn Hutchings tried to repair it during the 2019 general session. By introducing the Unborn victims of violence act (SF 128) she sought to provide statutory language that would allow Wyoming to prosecute the murder of an unborn child.

Sadly, the bill was heavily amended in the Senate Judiciary Committee. Every reference to “unborn child” was replaced with “fetus,” and every reference to “mother,” was replaced with “pregnant woman.” Although these amendments were removed on the senate floor, the bill ultimately failed. It remains legal in Wyoming to murder an unborn child against the will of her mother.

Now, the Torrington case has shown that it is likewise legal to deliver harmful drugs to an unborn child. MacDonald did not find and exploit a hidden loophole. Hutchings and others pointed out the loophole long ago. But, rather than fix it when they had the opportunity, the senate defeated SF 128 11-18.

It is no longer possible to be dismissive of Hutching’s concerns. It has now been proven in court that nothing short of a legislative fix will address the problem. Until the statutory language is corrected, Wyoming law will continue to conflict with the state constitution.

The Declaration of Rights, Paragraph 2 of the Constitution of the State of Wyoming stipulates “In their [the people’s] inherent right to life, liberty and the pursuit of happiness, all members of the human race are equal.”

The equality of the people of Wyoming is not affected by any subjective stage of development or subcategory of human being. Whether a member of the human race is called: “embryo,” “child,” “fetus,” or “person,” the Constitution recognizes equality for “all members of the human race.”

In recent centuries, deeply anti-human philosophies have sought to separate “human beings” from “persons.” By this sleight of hand, they have justified the blight of slavery, the Jewish holocaust, and a host of racist policies. Wyoming’s Constitution, written after the war to free the slaves, binds our lawmakers to give equal protection under law to all members of the human race without regard to the vile distinction between persons and non-persons.

I was disappointed to learn that the state’s prosecutor did not represent the constitution’s language to the Eighth District Court. Regardless, the court should have recognized its constitutional duty even where the statutory language fails to articulate the plain meaning of the constitution.

The Torrington case highlights the failure of Wyoming law to adequately guarantee the protections promised in the Wyoming Constitution. Clarissa’s life reminds us that this failure is not merely theoretical. It causes tangible harm to real people with lives worth protecting.

It is past time for Wyoming's executive branch, judicial system, and legislators to enact and enforce laws that give equal protection to every member of the human race as the Constitution demands.

WTE: Executive order is a step in the right direction

In 1996, we were experiencing a revolution in the free flow of information. When the world-wide web was still in its infancy, internet service providers (ISPs) like AOL, Prodigy and Geocities began offering users a place to publish their work to the world. They were the precursors of today’s social media giants.

Unlike a newspaper, where every word and picture had to be specifically approved by the editor, this budding technology allowed content to be published without the oversight of a general editor. Unfortunately, indecent and obscene content could be uploaded just as easily as family photos and thoughtful articles.

But libel and obscenity laws that were intended for publishers of print and network media were ill-suited for the burgeoning Internet. ISPs that operated as public bulletin boards faced no liability for user-generated content. But if they deleted even one offensive photo, they made themselves editors. As such, they would be legally and financially responsible for all content posted.

It was a Catch-22. Unless the free-for-all content of this new technology was subjected to the limits of basic decency, it would become a sewer, and useless for public discourse. But if ISPs were placed under the same libel laws as traditional newspapers, the legal exposure would force them to shut down. Again, free public discourse would be the loser.

Section 230 of the Communications Decency Act (CDA) was written to address this problem. Its explicit intent is “(4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material; and (5) to ensure vigorous enforcement of federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.”

Under paragraph (c) titled, “Protection for ‘Good Samaritan’ blocking and screening of offensive material,” Section 230 says, "No provider or user of an interactive computer service shall be treated as the publisher… [or] be held liable on account of—(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”

Clearly, the intent of Section 230 is to preserve parental rights and to protect children from “obscene, lewd, lascivious, filthy, excessively violent, [and] harassing” material. Nobody ever envisioned the words, “otherwise objectionable,” to give the platform carte blanche to censor at will.

Print and broadcast media have power of censorship because they are legally responsible for all content. If Twitter, Facebook and YouTube want to be publishers, they are welcome to shoulder all the editor’s responsibilities. But if they refuse the responsibility of abiding by libel and decency laws, they have no business claiming the right of editors to create, stifle or alter the content that their users are generating.

This is where President Trump’s Executive Order speaks. It declares, “When an interactive computer service provider removes or restricts access to content and its actions do not meet the criteria of subparagraph (c)(2)(A), it is engaged in editorial conduct.  It is the policy of the United States that such a provider should properly lose the limited liability shield of subparagraph (c)(2)(A) and be exposed to liability like any traditional editor and publisher.”

The Executive Order makes no attempt to change the law. It only directs the executive agencies to enforce the entire law—not cherry-picked portions of it. Every news outlet in the country ought to be loudly supporting this order. Abuse of Section 230 by social media giants is a large part of why newspapers are collapsing around the country. Wyoming’s Tribune Eagle no longer publishes daily, and Casper’s Star Tribune has outsourced its printing.

Among other things, the president’s order asks the attorney general to work with the Federal Communications Commission to write clearer rules. Executive agencies are directed to report the amount of taxpayer money funneled to platforms that actively skew the public discourse. The Federal Trade Commission is directed to act on 16,000 complaints of deceptive trade practices filed with the White House in May of 2019.

Are Twitter, Facebook, YouTube, and Google free-for-all public forums? Or, are they simply electronic newspapers, with editors and agendas of their own? Loose enforcement of the Communications Decency Act has allowed these social media giants to play both ends against the middle. They have used this special status to destroy responsible media and to harm public discourse.

Ultimately, it will be the social media giants themselves that decide what they are. It is the job of the U.S. government to give them a clear choice. The Executive Order on Preventing Online Censorship, is a good step toward clarifying that choice.


Also published in the Wyoming Tribune Eagle on  June 5, 2020.

Executive order is a step in the right direction

UnSplash photo by Markus Spiske

“Free speech is the bedrock of American democracy.  Our Founding Fathers protected this sacred right with the First Amendment to the Constitution.  The freedom to express and debate ideas is the foundation for all of our rights as a free people.” These are the opening words of Executive Order on Preventing Online Censorship, signed be President Trump on May 28, 2020.

The Associated Press used this as another opportunity to gaslight the American people. They characterized the order as “challenging the lawsuit protections that have served as a bedrock for unfettered speech on the internet.” Actually, the lawsuit protections written into the 1996 Communications Decency Act (CDA) were originally written “to restrict free speech on the internet,” according to the Electronic Frontier Foundation. If the AP mischaracterizes the Executive Order so badly, we should set the record straight.

In 1996, the Internet was still in its infancy. Netscape was the browser of choice and the fastest dial-up modems were operating at a whopping 33.6 kilobytes per second. Geocities.com and AOL.com were among the first service providers to let a web user build his own home page. Others soon followed. These interactive computer services became the precursors of today’s social media.
Unlike a newspaper, where every word and picture had to be specifically approved by the editor, this budding technology allowed content to be published without the oversight of a general editor. This was a revolution in the free flow of information. It was also an opening for more sinister pursuits.

Disgusting, indecent and obscene words and pictures could be uploaded just as easily as family photos and decent content. The unfettered use of user-generated content threatened to poison the Internet and drive away anyone who did not want to be assaulted by obscenities and lewd conduct. Unless something was done, its power would be unusable for decent citizens.

As a powerful new tool for the social good, it was in the interest of the government to protect the Internet from antisocial behavior. But the owners of interactive computer services ran into a legal conundrum. If they deleted even one obscene photo, they were no longer the operators of public bulletin boards, but made themselves editors. As such, they would be legally and financially responsible for all the content available on the platform.

What to do? Unless free speech was fettered to keep obscenities from turning the Internet into a sewer, it would not be available to anyone. But if user-generated pages were placed under the same libel laws as traditional newspapers, those pages could be sued out of existence. Again, the Internet would not be available to anyone.

Section 230 of the CDA was written to address this problem. Its explicit intent is “(4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material; and (5) to ensure vigorous enforcement of federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.”

Under paragraph (c) titled, “Protection for ‘Good Samaritan’ blocking and screening of offensive material,” Section 230 says, "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider" (47 USC sec. 230).

After this comes the lawsuit protection. “No provider or user of an interactive computer service shall be held liable on account of—(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”

Clearly, the intent of Section 230 is to preserve parental rights and to protect children from “obscene, lewd, lascivious, filthy, excessively violent, [and] harassing” material. Nobody ever envisioned the words, “otherwise objectionable,” to cover whatever the owner of the platform doesn’t want you to see.

It is the prerogative of print and broadcast media to disseminate, or to stifle whatever content it desires to give to or withhold from its consumers. With this right comes the responsibility to abide by decency laws and libel laws. If Facebook, Twitter, Google and the rest want these same prerogatives and responsibilities, they are welcome to have them.

But if they do not want the responsibility of abiding by libel and decency laws, they have no business claiming the right of editors to create, stifle or alter the content that their users are generating. And yet, this is precisely what today’s social media are doing.

This is where President Trump’s Executive Order speaks. It declares, “When an interactive computer service provider removes or restricts access to content and its actions do not meet the criteria of subparagraph (c)(2)(A), it is engaged in editorial conduct.  It is the policy of the United States that such a provider should properly lose the limited liability shield of subparagraph (c)(2)(A) and be exposed to liability like any traditional editor and publisher.”

A.G. Barr and President Trump

The Executive Order makes no attempt to change the law. It only directs the executive agencies to give attention to applying liability protections in keeping with the entire law, not by cherry-picking isolated phrases. Thus, it directs the commerce secretary and the attorney general to petition the Federal Communications Commission to make rules appropriate to Section 230.

This provision, especially, ought to be applauded by every newspaper and cable news show in the country. Abuse of Section 230 by social media giants is a significant factor in the massive decline of traditional media outlets.

The Executive Order further directs the head of each executive agency to review the money that the federal government pays to these corporate giants. It asks for a report to be delivered to the Office of Management and Budget in the next month. The American people deserve to know how tax-payer money is spent in support of platforms that actively skew the public discourse.

The Order also directs the Federal Trade Commission and the Attorney General to look into unfair and deceptive practices of the social media giants. In May of 2019, the White House received 16,000 complaints from social media users. Many believe they were deceived. They were promised a platform to disseminate ideas, but instead were shadow banned by the very companies that promised to broadcast their content.

Ed Asner plays a Newspaper editor

Twenty-four years ago the Internet had potential both to be a tremendous blessing and a terrible curse. That is no less true today. The world has jumped on an airplane that we are trying to build in mid-flight.

Are interactive computer services (social media) free-for-all public forums? Or, are they simply electronic newspapers, with editors and agendas of their own? The Communications Decency Act has allowed these corporate giants to play both ends against the middle. They can advertise themselves as public bulletin boards, but rip down notices with impunity.

Ultimately, it will be the social media conglomerates themselves that will have to decide what they are. It is the job of the U.S. government to give them a clear choice. The Executive Order on Preventing Online Censorship, is a good step toward clarifying that choice.